Court dismisses State bid to seize woman’s property in drug case

Court gavel./FILE

The High Court has dismissed an application by the Assets Recovery Agency (ARA) seeking to confiscate land and two vehicles owned by Ruth Atieno Auma, a woman previously arrested over narcotics trafficking. 

The court found that the agency had failed to link the assets to any criminal activity, ruling that suspicions alone are not enough to justify civil forfeiture.

In a detailed judgment delivered on June 5, 2025, Justice Benjamin Mwikya Musyoki held that ARA did not present adequate evidence to show that the land parcel in Mavoko and two Toyota vehicles allegedly owned by Auma were proceeds of crime.

The court criticised the agency for relying solely on circumstantial evidence from 2020 and not carrying out a full investigation to trace how the assets were acquired.

“The applicant did not conduct sufficient investigations to warrant the respondent to be called upon to provide explanations of the acquisition of her assets,” Justice Musyoki said in the ruling. 

“The applicant must make further steps to investigate the suspected assets and make a correlation between the assets and a crime or an illegitimate source of funds.”

The court was told that Auma had been arrested on August 14, 2022, at Gilgil weighbridge along the Nakuru–Nairobi highway with 368.5 kilograms of cannabis. 

The green plant material was later confirmed by government chemists to be narcotics with a street value of Sh11 million. 

At the time of her arrest, Auma was reportedly in a Toyota vehicle loaded with nine sacks of the substance. 

She was later charged at the JKIA Law Courts in Nairobi.

Following her arrest, ARA began investigating her financial records and property ownership. 

The agency claimed that Auma acquired her assets using proceeds from drug trafficking, contrary to Section 4A of the Narcotics and Psychotropic Substances (Control) Act.

ARA filed a motion on September 6, 2024, seeking forfeiture of three specific assets: Mavoko Municipality Block 40 Parcel No. 63, measuring 0.0465 hectares, and two Toyota vehicles registered under her name. 

It also asked the court to transfer ownership of the properties to the agency and sought an order for the National Transport and Safety Authority (NTSA) to re-register the motor vehicles in its name.

In support of the motion, ARA submitted affidavits from Nicholas Sune, an investigator with the agency. 

Sune said that after Auma’s arrest, the agency obtained warrants to inspect her bank accounts and mobile money records, which revealed deposits structured in amounts below Sh1 million—a strategy often used to evade Central Bank reporting thresholds. 

The agency highlighted five bank accounts and two mobile money lines linked to Auma, arguing that the transactions raised suspicion of money laundering.

However, the court found several gaps in ARA’s case. 

While the bank and M-Pesa statements from 2020 showed notable transactions, ARA did not explain why its investigations focused only on that year, despite the fact that the two vehicles were purchased in 2019 and 2021, respectively.

One of the vehicles, according to the court, was registered on December 6, 2019, before the recorded M-Pesa transactions. 

The second vehicle was registered on May 13, 2021, nearly a year after the financial activities ARA had flagged.

“The applicant has not told the court why it concentrated on the year 2020 only… there are no bank statements or mobile money records beyond December 2020,” the judge noted.

Justice Musyoki also faulted ARA for not tracing the origin of the purchases. 

“I do not see any difficulties the applicant would have faced in tracing where the motor vehicle was purchased from. Getting the information of the seller would have given a trail of how the purchase price was moved,” he observed. 

“This court wouldn’t know because the applicant did not provide statements for 2019.”

Regarding the land parcel, the title deed for Mavoko Block 40/63 was issued on October 27, 2020, and was charged to Absa Bank for Sh8.4 million. 

The court found that the loan account matched the property purchase timeline and concluded that the land was likely bought using a bank facility, not criminal proceeds.

“The applicant should have demonstrated to this court that the repayments of the loan were from proceeds of crimes which would have justified forfeiture. It is my finding that the applicant has not sufficiently connected this property to any proceeds of crime,” Justice Musyoki ruled.

Auma, in her defence, admitted ownership of the land and vehicles but denied they were acquired through drug trafficking.

While she confirmed her 2020 arrest and ongoing case, she insisted the assets were the result of hard work and legitimate business ventures. 

However, she did not specify the nature of her business or provide documentation to support her claims.

Auma further cited her constitutional right to own property under Article 40 of the Constitution and argued that ARA’s allegations were speculative. 

She said the agency failed to show a clear link between her arrest and the assets in question.

The judge agreed that while the applicant is mandated by law under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA) to investigate and recover criminal proceeds, such powers must be exercised within the framework of evidence, not assumptions.

“Not all persons arrested and charged in court are necessarily guilty or connected to the offence they are charged with,” said Justice Musyoki.

“The applicant must execute its mandate… This includes proper investigations and not mere suspicions.”

The court further pointed out that civil forfeiture under POCAMLA requires a clear connection between a specific crime and the property in question. 

“The money used in acquiring the assets must, on a balance of probabilities, be traced to the proceeds of crime,” the judgment read.

Justice Musyoki also noted the difference between civil forfeiture and unexplained wealth claims under the Anti-Corruption and Economic Crimes Act. 

Unlike unexplained wealth, which targets individuals unable to account for their riches, forfeiture under POCAMLA targets specific assets linked to criminal acts.

The court highlighted past rulings to reinforce its position. In a precedent case, the court ruled that “failure to offer rebuttal evidence does not necessarily mean forfeiture order will be issued as a matter of course.”

 "ARA must first meet the threshold of proving the asset is linked to crime. In this case, the agency failed to do so."

The interested party, Mwananchi Credit Limited, which was initially listed in the case, also successfully removed itself from the proceedings.

It clarified that one of the motor vehicles was only used as security for a loan to one Brian Omondi Ouma, which was fully paid off by June 18, 2024. 

Therefore, the lender had no remaining interest in the vehicle.

In conclusion, the judge found that ARA’s application lacked the necessary depth of inquiry to justify forfeiture.

“This to me is not enough to establish a prima facie case,” the court said, adding that allowing such shallow investigations would set a dangerous precedent.

As a result, the High Court dismissed ARA’s motion in its entirety and ordered the agency to pay costs to the respondent.